Sexual Violence and the Forgotten Victims in the Libyan Conflict
A content and discourse analysis into the disproportionate representation of male victims of conflict related sexual violence in UN discourses
Student: Rosanne Wijn (43921676) Supervisor: Dr. Kiki Santing Master Thesis Middle Eastern Studies
22 November 2020
Table of contents
Introduction 3
Context 6
Libyan conflict 6
Migration crisis 8
Literature review 11
Conflict related sexual violence 11
Sexual violence against men - prevalence 12
Sexual violence against men – functions and consequences 14
Theoretical framework 16
Conceptualization 16
Gendered lens 18
Methodology 22
Selection of materials 22
Content analysis 23
Discourse analysis 25
Analysis 27
Rome Statute of the International Criminal Court 27
UN Resolutions 29
UN Reports 35
General observations – content analysis 38
Discourse analysis 40
Conclusion 44
Bibliography 47
Appendix A: materials for analysis 53
Appendix B: codes 55
Introduction
“As daunting as the road ahead is, I do not think eradicating sexual violence in conflict is a mission impossible.” These were the words of Zainab Bangura, the UN Secretary-General’s Special Representative on Sexual Violence in Conflict in 2012 (UN News, 2012). This was not the first time that the United Nations spoke out about conflict related sexual violence (CRSV), but it did represent the first time that sexual violence was no longer framed as a women’s issue.
Bangura described how men and boys are increasingly targeted, and how “in particular […] her office is monitoring the situation in Libya and Syria, where sexual violence has been used to get testimonies and information” (UN News, 2012). Historically, research on sexual violence in armed conflict has been predominantly focused on female victims, which resulted in important legal frameworks and advocacy initiatives such as the 1993 Declaration on the Elimination of Violence against Women, the 2005 Inter-Agency Standing Committee Guidelines for Gender-Based Violence Interventions in Humanitarian Settings, as well as several UN resolutions within the general Women, Peace and Security (WPS) agenda (Solangon & Patel, 2012, p. 418). Only recently has the UN begun to consider male victims in their outward communications, publications and policies.
Male victims have thus remained relatively underexposed throughout the rising recognition and importance of sexual violence in conflict, and its occurrence continues to go largely undocumented. This is generally attributed to a widespread stigma surrounding sexual violence in general, which is even more relevant for male victims (Russell, Hilton & Peel, 2010, p. 2). Men often struggle to communicate their experiences with sexual violence due to fear of being ridiculed or emasculated, and health professionals and first aid providers sometimes fail to recognize tacit signs of sexual violence due to a lack of awareness that men suffer from these abuses as well (Solangon & Patel, 2012, p. 422; Holmes & Offen, 1996, p. 495). Nevertheless, instances of sexual violence by men against men (or ‘male sexual violence’) is widely reported in conflicts around the world. The evidence is largely anecdotal, but it is generally agreed upon that it is severely underreported (Sivakumaran, 2007, pp. 254-255). The most extensive documentation effort to date stems from the Sexual Violence in Armed Conflict (SVAC) data set, initiated by scholars Ragnhild Nordås & Dara Key Cohen, which has contributed to the study of sexual violence in conflict and reinforced its recognition as a critical international security problem (Nordås & Cohen, 2021, p. 202). Although this dataset cannot be used to estimate the number of victims within a context, it uses a scale in order to determine whether its prevalence is massive, common, some or none in order to assess the severity of abuses. As
such, it provides a valuable insight into the prevalence of sexual violence in many conflicts around the world.
As noted by Special Representative Bangura, throughout more than a decade of conflict Libya has become a breeding ground for widespread sexual violence. The SVAC data set includes 41 separate instances or actors in which sexual violence was reported around the country from the period of 2011 to 2021 (Cohen & Nordås, 2021). The UN, too, reports occurrences of sexual violence, especially in prisons and detention and migration camps – often as a way to extract confessions or other forms of information (Kirby, 2020, pp. 1217-1218).
This is largely attributed to high levels of political unrest and a severe decentralisation and fragmentation of power, which has led to an exacerbated migration crisis and a lack of oversight into national security forces such as the Libyan Directorate for Combating Illegal Migration (Carboni & Moody, 2018, p. 457; Kirby, 2020, pp. 1216-1217).
This thesis will analyse the extent and manner in which the UN speaks about male victims of conflict related sexual violence in Libya. Besides concrete effects through policy construction, the UN also has the power to shape the framework for combating CRSV discursively through how it discusses these issues. Through its language it not only communicates understandings of CRSV, but also produces it (Charman, 2018, p. 201).
Therefore, it is an important actor in the (international) efforts to eradicate sexual violence in conflict, and the manner in which it speaks about such issues shapes the responses within, for example, Libya. As such, the research question that will be answered within this thesis is: what position do male victims hold in UN discourses surrounding conflict related sexual violence in post-Gaddafi Libya? In order to do so, both a content analysis and a discourse analysis will be conducted on relevant UN resolutions, the wider legal framework constructed by the International Criminal Court, and a selection of UN reports documenting instances of CRSV in Libya. As such, the answer to the research question will be both quantitative through the content analysis, and qualitative through the discourse analysis. Combined, they will provide an insight into the recognition that is given to male victims of sexual violence within UN discourses, and inferences can be made into whether they are sufficiently represented in UN policies and documentation.
First, an overview will be given of the social and political context to the persisting conflict in Libya. Here, attention will be given to the fragmentation of power following the toppling of the Gaddafi regime, as well as the migration crisis that worsened consequently.
What follows is a literature review in which conflict related sexual violence as a relatively new topic of focused study is outlined. This section will also entail an overview of the existing
literature on the prevalence, functions and consequences of CRSV against men is discussed.
Furthermore, in the theoretical framework the different concepts that are related to CRSV are explicated in order to properly define it. It will also explicate the gendered lens that is employed within this thesis. Next is the methodology, in which the choices leading to the selection of the materials will be elucidated, as well as a description of the content and discourse analysis that will be employed in this thesis. Finally, this analysis will be carried out and in the conclusion the results will be reviewed and contextualised, and its implications discussed.
Context
Libyan conflict
Before the revolts of 2011 erupted in Libya, the country enjoyed a considerable level of wealth.
For example, according to data by the World Bank, in 2010 the GDP of Libya amounted to 75.38 Billion dollars with approximately 1,200 US dollars per capita (World Bank, 2010).
Additionally, the Human Development Index (HDI) of Libya was considerably higher than its neighbouring countries. This index is published annually by the Human Development Report Office of the United Nations Development Programme, and provides a measure of three basic dimensions of human development: income, health and education. In 2010, the HDI of Libya measured at 0,760. This is considered a high level of human development, as the regional score for Arab States measured at 0,641 and the global average at the time was almost 0,70 (United Nations Development Programme, 2022). This could be attributed to its relatively small population and flourishing economic situation, supported by its oil and gas industry (Pedde, 2017, pp. 94-95). As a result, Libya was considered a fairly stable state within the MENA region.
For this reason, most Western observers were surprised with the sudden wave of popular demonstrations, and assumed that the Libyan people were protesting against the longstanding dictatorship of Muammar al-Gaddafi (Pedde, 2017, p. 94). This view is contested by scholars who argue that the origins of the uprisings lie much deeper and are rooted in popular dissent at structural problems at the socio-economic level (Pedde, 2017; Carboni & Moody, 2018;
Hamada, Sökmen & Zaki, 2020; Paoletti, 2011). For example, author Nicola Pedde notes that
“the Libyan conflict is the result of a complex and controversial series of developments, where local political events have been strongly influenced and driven by exogenous factors” (2017, p.
93). This includes developments and factors such as the rapid reactions of the French and British governments in support of anti-governmental actors, as well as regional efforts to fight rising Islamism by actors such as Saudi Arabia, the United Arab Emirates and Egypt in the aftermath of the revolution (Pedde, 2017, pp. 95-97). Furthermore, author Emanuela Paoletti emphasizes that domestic politics has historically been dominated by an intricate yet fragile game of family alliances, which resulted in a weak political debate throughout Libya’s history. She argues that Libya’s main issue is the persistent precarious interaction between international recognition, political identity and state formation (2011, p. 318). She further concludes that by lack of peaceful and democratic institutions, Libya’s political and social climate was quick to ignite when an opportunity for change presented itself.
Quickly after the revolt started in late February 2011, the international community set out to intervene. This was preceded by extensive media coverage that narrated the way that Gaddafi brutally struck down the demonstrations in an attempt to stop the revolts before they could gain momentum (Pedde, 2017, p. 95). NATO allies, mandated by the UN and spearheaded by the US, retaliated against Gaddafi’s regime with a short but severe series of air strikes. Gaddafi eventually fled the capital but was ultimately captured and killed by armed rebels on the 20th of October that same year (Pack, 2019). Immediately after Gaddafi was overthrown and his loyalist forces were ousted, there was relatively little violence. As such, only a small UN mission was initiated to assist and help coordinate post-conflict stabilization support (Chivvis & Martini, 2014). However, the situation would not stabilize and the country quickly erupted into two consecutive civil wars with competing governments, parliaments, armed brigades and militias. The overbearing character of the Libyan state before the revolts helped to fuel the outbreak of the conflict, due to high levels of economic dependency. Before the revolts, the number of public employees was over 70% of the total employees according to World Bank data. This causes high fragility in case of crisis, since the inability of the state to function effectively after the revolt jeopardizes the incomes of most of the Libyan families (Hamada, Sökmen & Zaki, 2020).
The outbreak of violence led to high levels of political unrest and a considerable power vacuum. In this vacuum, there now exists a multitude of armed groups that are fighting over different interests, including tribal, regional, ideological, and religious (Eriksson, 2015, p. 8).
Over time, the country has fragmented and no authority has full control over its territories. This is seen as a major source of conflict escalation, due to state power being heavily contested (Carboni & Moody, 2018, p. 457).
There are two major oppositional parties, in addition to a variety of militant groups. The first is the Government of National Accord (GNA) which was installed in 2016, and is an internationally recognized and UN-appointed interim government. It is challenged by the al- Thani government, which is backed by the Libya National Army (LNA) and has control over much of Libya’s Eastern territories. (Pack, 2019). In March 2021, the Government of National Unity was formed as a provisional government, in an attempt to unify the GNA with the al- Thani government. However, this settlement is criticized as a mere semblance of compromise that doesn’t constitute real political unity, and thinly obscures both existing and new divisions (Lacher, 2021). Elections were planned for December 2021, but ultimately postponed due to the fact that the country was unable to address the difficulties that are encountered in the electoral process in time (UN News, 2021). It is uncertain whether successful elections will
help unify the incredibly fragmented country, and considerable peace-building efforts will have to be made in order to reconcile its people.
Several authors have identified factors that have enabled the conflict to persist and exacerbate. For example, author Emanuela Paoletti notes that the civil war has highlighted long- standing internal divisions between the western region of Tripolitania and the eastern region of Cyrenaica. These regions were historically governed by different families and tribes, many of which are still powerful today (Paoletti, 2011, pp. 313-314). Tribalism is thus identified as another impairing factor when it comes to the instability of the state structure. At the beginning of Gaddafi’s rule, he tried to disable Libya’s existing tribal systems by degrading tribal identities, as part of his effort to modernise the country. However, he eventually found that he could profit much more by instrumentalising the numerous tribes of Libya in order to establish and maintain social control (Eriksson, 2015, p. 14). By cleverly capitalising on tribal tensions and alliances, his regime was able to apply pressure to weaken and undermine his opponents (Lamma, 2017, p. 32). However, by engaging in this ‘divide and rule’ strategy in Libya’s tribal politics, he also emphasized and endorsed the ethnic and tribal fault lines that are at the basis of many internal conflicts that can be observed within Libya today (Eriksson, 2015, p. 14).
Migration crisis
With the majority of reports originating from refugee and migration, it is important to explicate how this situation came into existence. Libya has long served as a transitory migration state for migrants from both East and West Africa. Since around the turn of the century, the number of migrants who seek to reach Europe through Libya has started to grow due to rising tensions and violent conflicts in the MENA region and sub-Saharan parts of the Africa continent. This has included almost exclusively non-Libyan migrants, particularly from sub-Saharan African countries like Somalia and Nigeria (Lutterbeck, 2013, p. 137-139). The country on the North- African coast has also been engaged as part of EU migration and asylum policy, which Italy has especially participated in. This was predominantly focused on the containment of illegal migration and included surveillance policies such as increased patrols in the Mediterranean Sea, prevention measures such as the implementation of electronic controls on Libya’s southern borders, and eventually resulted in forced returns such as the illegal ‘pushbacks’ of boats back to Libya (Baldwin-Edwards & Lutterbeck, 2019, pp. 2243-2244). Gaddafi claimed that Libya was doing all it could to curtail illegal migration from its borders into Europe, but that its extensive coastline made it impossible to prevent. However, reports from migrants passing
through Libya have pointed out that there was a general tolerance of migrant transportation by Libyan military border patrols, often in exchange for money (Lutterbeck, 2013, pp. 153-154).
After Gaddafi’s violent removal from power the security situation deteriorated. More migrants started to pass through Libya, and by 2014 as many as 170,000 (non-Libyan) African migrants had arrived in Sicily (Baldwin-Edwards & Lutterbeck, 2019, p. 2244). The scope of the surveillance has grown as well. and each year between 10,000 and 20,000 people attempting to flee to Europe are intercepted by the Libyan Coast Guard. This interdiction at sea has led to detention at a massive scale at land, and those that could have been categorized as rightful asylum-seekers in Europe are instead criminalized and imprisoned. The United Nations High Commissioner for Refugees (UNHCR) has stated that in 2019 approximately half of the people who were intercepted at sea or returned by the EU were subsequently detained in Libya (Kirby, 2020, pp. 1214-1215). This is especially problematic when we consider that immigrant detention in Libya is considered arbitrary under international law, and widely recognized as contrary to basic human rights. The Libyan Directorate for Combating Illegal Migration (DCIM) is the body that is mostly responsible for coordinating and managing detention sites where migrants and refugees are held in conditions that are often described as ‘inhumane’ by several NGO’s as well as UN institutions such as UNSMIL and OHCHR. Between 2017 and 2019, between 5,000 and 20,000 migrants were consistently being held in official DCIM detention centres (Kirby, 2020, p. 1216). A substantive body of evidence from various governmental and non-governmental organizations such as the EU, UN missions and agencies, Women’s Refugee Commission, Refugees International, Amnesty International, Human Rights Watch, Médecins Sans Frontières, and the Mixed Migration Centre – as collected in work by Paul Kirby (2020) – shows that within these detention centres, sexual violence has become commonplace and a ‘widespread’ experience that affects almost all migrant women. UNSMIL and OHCHR also report sexual violence being directed at men as well as women as torture tools in order to obtain ‘confessions’ (pp. 1217-1218).
In terms of current state control over its migration programme, the DCIM has been subjected to a lot of criticism that can be associated with weak state power. There are no clear numbers on the total number of official DCIM detention centres due to areas falling in and out of Tripoli’s control, and sites are sometimes disbanded or detainees ejected for varying reasons.
In addition to these official DCIM facilities, there is a multitude of alternative detention sites that are under the control of militias or rivalling power centres. UN officials have even concluded that the centralized power of the recognized government is so little that in reality no real national security forces can be considered present at all (Kirby, 2020, pp. 1216-1217). As
such, the security situation has been allowed to deteriorate and human rights abuses, including sexual violence, continue to occur. However, the extent to which these abuses persist is not sufficiently clear, as the periodic intensification of armed conflict has left human rights agencies hindered to monitor abuses, as detention sites are abandoned by national security forces or overtaken by competing armed groups (Kirby, 2020, pp. 1224-1225).
Literature review
Conflict related sexual violence
Conflict related sexual violence is a relatively new topic of focused study, which started gaining scholarly engagement around 15 years ago (Nordås & Cohen, 2021, p. 194). The first article published in the academic field of political science or international relations that discussed the topic of ‘sexual violence and war’ occurred in 2001, and until 2006 the number of peer reviewed publications concerning the topic counted less than five per year. This number has since increased significantly, and counted 58 publications in 2018 (Nordås & Cohen, 2021, p. 195).
As such, it has increasingly called for a more encompassing understanding of political violence, and the need to include more forms of violence as well as possible actors, and eventually contributed to an increased awareness of gender issues within the field of conflict studies (McDermott, 2020, pp. 1-2). Furthermore, sexual violence has become increasingly present within literature regarding civilian victimization in conflict (Nordås & Cohen, 2021, p. 194).
Early academic work on conflict related sexual violence was driven by instances of widespread and horrific violence such as the war in the former Yugoslavia from 1992 to 1995 and the genocide in Rwanda of 1994 where sexual violence and mass rape was widely reported.
As such, the first scholars who concerned themselves with such topics were predominantly concerned with normative arguments on why sexual violence should matter to academics as well as those in power (Nordås & Cohen, 2021, p. 196). In order to do so, the dominant theory of rape as a weapon of war proved useful. Author Paul Kirby summarized the prevalence of this theory by stating that “rape is a weapon of war. Such is the refrain of practically all contemporary academic research, political advocacy and media reporting on wartime sexual violence. Once considered firmly outside the remit of foreign policy, rape is today labelled as a ‘tactic of war’ by US Secretaries of State who pledge to eradicate it […]”. (2013, p. 798) Within this theory it was often argued that the primary goal of rape within a conflict is to inflict trauma and cause divisions within communities and therefore the ‘enemy camp’ (Diken &
Laustsen, 2005, p. 111). It is also emphasized as a method of ethnic cleansing and, by extension, genocide (Nordås & Cohen, 2021, p. 196; Diken & Laustsen, 2005, p. 111). Central within this theory of rape as a weapon of war is the notion of sexual violence as a strategic, instrumental and tactical act, which is used to achieve a certain goal.
Eventually, the research on conflict related sexual violence began to broaden, and a critical look was given to the significant variations that are visible within its occurrence. Scholar Elizabeth Wood was a driving force behind this new phase of research, and her work is regularly cited by authors who argue for a more encompassing understanding of conflict related sexual
violence (e.g. Nagel & Doctor, 2020; McDermott, 2020; Becerra, 2018; Dolan, 2014). This includes various outward forms such as forced prostitution, but also an understanding of sexual violence as a practice that relies on gendered norms and beliefs and can be opportunistic or ideological, rather than strictly strategic (McDermott, 2020, p. 3). Wood’s work is credited with a new wave of scholarship that resulted in wealth of new theories documenting and understanding the different functions and variations of sexual violence, making her an important and well-respected figure within the study of sexual violence (Nordås & Cohen, 2021, p. 197).
Within this large body of literature available on the topic of conflict related sexual violence, the focus still lies predominantly with female victims. For example, Ennaji & Sadiqi (2011) emphasize that civilians account to as much as 70 to 80 percent of the victims of contemporary wars, and that most of them are women who are reportedly being tortured and humiliated in prisons and refugee camps. They also call for a feminist platform based on solidarity in order to abolish all forms of oppression, discrimination and violence that women face in times of war at the hands of men (Ennaji & Sadiqi, 2011, pp. 2-3). Their view assumes a patriarchal approach and describes men as perpetrators while reserving the victim role for women. Another example can be found within the work of Rose McDermott, the focus lies with female victims as well. She states that “gender hierarchies that privilege male over female rights and liberties contribute[s] greatly to the incidence and patterns of violence” (2020, p. 4). Here, gendered hierarchies are referred to in order to explain the occurrence of (sexual) violence against women. However, it foregoes that these same gendered hierarchies cause men to fall victim to sexual violence as well (Scheper-Hughes and Bourgois, 2004, p. 22). Mirroring this, several authors reflect on the fact that the available literature on conflict related sexual violence focuses predominantly on a limited spectrum of sexual violence, which is the rape of civilian girls and women (Wood, 2009, p. 132; Kirby, 2020, p. 1209; Grey & Shepherd, 2012, p. 5).
Sexual violence against men - prevalence
Sexual violence in armed conflict has existed for centuries, and occurrences with male victims date back to ancient times where, for example, castrations were a common form of conquest among a multitude of cultures (Solangon & Patel, 2012, p. 419). Less overt forms of sexual violence committed against men are poorly documented, and transpire more frequently than is commonly thought (Sivakumaran, 2007, p. 253). Nevertheless, reports of male victims can be found in many conflicts around the world. Forms of sexual violence that have been recorded against men include rape, sexual mutilation, sexual torture, enforced sterilization, sexual
humiliation, sexual enslavement and enforced masturbation (Solangon & Patel, 2012, p. 419).
Men and boys are found especially vulnerable in detention, during military operations in civilian areas, military conscription or abduction into paramilitary forces and in refugee and internally displaced persons (IDP) camps (Russell, 2007, p. 22). In these detention centres, sexual violence is usually suffered in the context of torture for interrogative or punitive purposes, including electrocution, beatings, mutilations, penetration, and forced performance of sexual acts (Solangon & Patel, 2012, p. 430).
Although international organizations such as the UN and international criminal courts have been increasingly acknowledging the issue of male victims of sexual violence, it remains largely undocumented and little is known about its scope or psychological consequences. The most comprehensive effort to document the prevalence of conflict related sexual violence can be found in the Sexual Violence in Armed Conflict (SVAC) dataset, which systematically features reports of sexual violence in 129 active conflicts throughout the period of 1989 to 2019 (Cohen & Nordås, 2021). It was developed by scholars Dara Key Cohen and Ragnhild Nordås, and it operates with a wide definition of sexual violence, which doesn’t exclude the existence of female perpetrators or male victims. Furthermore, it includes a wide range of conflict actors who are involved in intrastate, internationalized internal and interstate conflicts, and documents the prevalence, perpetrators, targeting (random or selective), forms, location and timing of sexual violence that is reported (Cohen & Nordås, 2014, pp. 419-420). It draws upon data from the US State department, Amnesty International and Human Rights Watch, which provide annual global coverage and are considered valid sources (Cohen & Nordås, 2014, p. 421).
Nevertheless, reports of male victims of conflict related sexual violence remain relatively scarce. Most experts believe that it can be assumed that the limited data that does exist severely under-represents the actual number of male victims of sexual violence (Russell, Hilton & Peel, 2010, p. 2). This is largely due to the fact that there is a widespread stigma surrounding the issue, and victims are reluctant to speak openly about it. Male-to-male sexual violence is often accompanied by a lot of shame, humiliation, guilt, fear, and homophobia. Not wanting to be labelled as a victim, male survivors often report being ‘abused’, ‘humiliated’ or
‘tortured’, rather than, for example, ‘raped’ (Solangon & Patel, 2012, p. 422). This leads to another hindrance with the collection of comprehensive data surrounding male victims of conflict related sexual violence, which lies with the wrongful coding and classification of sexual violence against men as torture (Solangon & Patel, 2012, p. 419). Health professionals, who are often the first contact where sexual violence is reported, often find it uncomfortable to discuss sexual violence against men. Furthermore, the literature suggests that health professionals and
others providing aid to victims sometimes fail to recognize cases due to the a lack of awareness that men are potential victims of sexual violence (Holmes & Offen, 1996, p. 495). Another explanation lies with a predominant or even exclusive focus on anal rape, while overlooking other forms of sexual violence. In addition, genital mutilation and beatings are often classified as torture, which foregoes the sexual element of the violence that is endured, and thus only reports on part of the traumatic occurrence (Solangon & Patel, 2012, p. 423).
At the institutional level, the subject of (conflict related) sexual violence is increasingly addressed by instances such as the UN Security Council, the World Health Organization and international criminal tribunals. Albeit considerably less than female victims, the fact that men and boys can become victims of sexual violence as well is slowly being more readily recognized. Nevertheless, this has not been broadly translated into policies meant to aid male survivors such as mechanisms for raising awareness, focused research agendas or strategies for prevention (Russell, Hilton & Peel, 2010, p. 8; Sivakumaran, 2010, p. 260). The most significant advance in the area of sexual violence has been the passage of Security Council Resolution 1820, when the UN called for “the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect” (UNSC, 2008). However, a review of UN responses to sexual violence against men and boys in armed conflict from 2010 shows that there was still a limited understanding of the problem to its full extent and form, and that Resolution 1820 and its follow-up procedure contributed to the relative silence surrounding male victims by excluding them from its framework (Sivakumaran, 2010).
Sexual violence against men – functions and consequences
When sexual violence in any context or form occurs, several dynamics are often at play. When we analyse conflict related sexual violence, different dynamics will be relevant depending on whether the victims are civilians or combatants, considered enemies or people within one’s own community. Author Sandesh Sivakumaran (2007) has argued that the one predominant dynamic which is usually present is that of power and dominance. This is the case with sexual violence against women, but the same can be said for sexual violence against men. When armed conflict breaks out, power dynamics are also often altered and therefore prone to reconfiguration. With a breakdown of law and order, pre-existing social hierarchies can become more present (Sivukumaran, 2007, p. 267). He further states that “the construction of masculinity is that of the ability to exert power over others, particularly by means of the use of force. Thus, men are considered to represent the virility, strength and power of the family and the community, able
to protect not just them but others” (Sivukumaran, 2007, p. 268). As a result, damaging this protectoral perception of male victims of sexual violence affects not just them as an individual, but also disempowers their family and community. The ‘masculinity’ of the victim is compromised, and the family and community are made to be vulnerable. As such, scholars argue that sexual violence is commonly used as a strategy in conflict situations to humiliate the enemy. Authors Scheper-Hughes and Bourgois state that “rape is an act of violence against the female or the feminized male body and against the male owners and supposed protectors of those same bodies” (2004, p. 22). This disempowerment and fear-mongering is often meant to expel communities and cause them to flee, in submission to the power of the perpetrators (Suvukumaran, 2007, p. 269). Within the context of (armed) conflict this emasculation is often further aimed at the ‘other’ as a particular ethnic, racial or religious group, in order to symbolically dominate that entire group (Suvukumaran, 2007, p. 274).
Another function of sexual violence against men is so-called ‘feminization’. This dovetails with the effect of emasculation, and aims to make victims feel that they have been turned into a de facto female. This effect is often explicitly described by survivors, and leads to humiliation. One victim described to a reporter: “I’m laughed at… The people in my village say: ‘You’re no longer a man. Those men in the bush made you their wife’,” which points to the relevance of gender dynamics in male-on-male sexual violence (Russell, Hilton & Peel, 2010, p. 6).
For most individuals, sexual violence is an exceptionally powerful attack on one’s personal and social identities, which can far outlive any physical scars or wounds that are the result of its occurrence. At the psychological level, victims may experience long-lasting problems such as feelings of anger, self-blame or guilt, depression, suicide ideation, substance abuse problems, anxiety- and sleep-disorders and posttraumatic stress disorder (PTSD) (Solangon & Patel, 2012, p. 421; Russel, Hilton & Peel, 2010, pp. 7-8). Furthermore, men especially are often socially excommunicated from their communities, referred to as ‘bush wives’, emasculated and humiliated, as was explicated earlier. Reversing these effects, and reintegrating men and boys remains a huge challenge in many societies (Solangon & Patel, 2012, p. 421). As such, it is important to be mindful of the significance of these effects and include male victims in both preventive and combative policies when it comes to conflict related sexual violence.
Theoretical framework Conceptualization
At the core of any fruitful discussion of conflict related sexual violence, lies the question of how these concepts are to be understood. What can be defined as ‘violence’? Is there a universal concept of violence or is it ‘man-made’ and therefore intrinsically intertwined with historical, cultural and regional influences and therefore subject to change? And how does this dovetail with conceptions within international law and policy makers? Scholar Patricia Zuckerhut approaches this question by turning to the discipline of anthropology, which assumes that violence is not present in all groups and societies in the same way or to the same extent. As such, one act may be perceived as violent in one group or context, while not in others (Zuckerhut, 2011, pp. 13-14). This implicates the contextual and processual nature of violence.
She further notes that in defining violence, there is a tendency to focus on the physical dimension of ‘hurt’ such as war and torture (Zuckerhut, 2011, p. 15). However, defining violence in this way has implications for how it is dealt with in, for example, policy. For example, authors Alison Rutherford et al. note that the World Health Organization defines violence as “the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation” (Rutherford et al., 2007, p. 676). Although this definition does include the threat of harm in its definition of violence as well as its potential to result in psychological harm, it still focuses exclusively on the physical dimension of violence.
Authors Walby et al. (2017) explore whether physicality is an essential component of violence. They note that the existing literature on the subject is divided between what they call a narrow or broad definition of violence (p. 36). A broad definition of violence could include non-physical forms of coercion. This entails, for example, repeated intrusive communications, stalking or sexual harassment (Walby et al., 2017, pp. 36-37). They further note that violence is “a kind of social relationship between perpetrator and victim in the sense that both perpetrator and victim are necessary to the event” (Walby et al., 2017, p. 32). As such, it is the perpetrator that performs an action with the intent to cause harm, and this harm is directed at a victim that has not consented to the action. Gender dynamics can then alter the characteristics of this social relationship, which is what is often relevant when we speak about sexual violence (Walby et al., 2017, pp. 42-43).
So what, then, is to be understood as ‘sexual violence?’ Firstly, not all expressions of violence are gendered or sexualized, and specific definitions are contextually dependent and
change over time (Ennaji & Sadiqi, 2011, p. 11). Therefore, it is important to outline exactly what conceptions will be included and discussed in this thesis. Virtually all definitions of sexual violence include rape, but the wider term ‘sexual violence’ encompasses a large range of violations. Some examples of such definitions include coerced undressing, non-penetrating sexual assault, humiliation and improper sexual comments (Nordas & Cohen, 2021, p. 194).
The definition that is most often used by (state) officials and widely accepted and adopted within the international community including by the UN, is that of the International Criminal Court (ICC). Within the Elements of Crimes Annex of the ICC, five different concrete forms of violence are included: (a) rape, (b) sexual slavery, (c) forced prostitution, (d) forced pregnancy, and (e) forced sterilization/abortion. Here, rape is defined as an act where “the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.” Furthermore, “the invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent” (ICC, 2013). This definition doesn’t exclude the existence of male victims by using gender-neutral terms such as ‘invasion’, as well as the inclusion of the anal opening of the victim.
I will follow these definitions within this thesis, while also including some forms that do not necessitate penetration and fall under the ‘wider’ definition of sexual violence. The Elements of Crimes Annex by the ICC includes a description of ‘sexual violence’ that could be used to this end, which is defined as “an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent” (ICC, 2013). However, this definition leaves for a lot of grey area as to what is to be interpreted as ‘a sexual nature’. Therefore, I will draw upon work by Elisabeth Wood who includes sexual mutilation as well as sexual torture to specify what is understood and coded as sexual violence within this thesis (Wood, 2006, pp. ; Wood, 2009, pp. 308-309). I will further draw upon work by Sandesh Sivakumaran (2007), and include enforced nudity, often accompanied by humiliation and threats and enforced masturbation. He makes the compelling argument that these fall under the wider ‘sexual violence’ marker as specified by the ICC, and
are of comparable gravity as the other forms of sexual violence that are comprised (Sivakumaran, 2007, pp. 262-263). Scholar Valerie Oosterveld (2005b) – who took part in the Rome Statute negotiations – notes that the term ‘sexual violence’ was included in the document in order to ensure that acts such as “forced nudity and sexual mutilation, or any other similarly degrading acts invented by perpetrators in the future” would be included in the legal definition of a war crime and a crime against humanity as outlined by the Rome Statute (p. 124). As such, it will be included in this thesis as well.
A final point of discussion lies with the ‘conflict’ aspect of ‘conflict related sexual violence’, which presents some further variations along the lines of which forms of violence are to be considered conflict related. This variations are mostly visible when we look at scholarly definitions on the one hand, and policy and advocacy communities’ definitions on the other. The SVAC data set ascribes to the scholarly definition, in which the description of
‘conflict related’ refers to acts of violence that are committed in a conflict or immediate post- conflict setting by armed actors. This includes state militaries, rebel groups, and progovernment militias (Nordås & Cohen, 2021, p. 195). The UN operates along the lines of the policy and advocacy definition which is much broader: “[sexual violence] that is directly or indirectly linked to a conflict. This link may be evident in the profile of the perpetrator, who is often affiliated with a State or non-State armed group, including those designated as terrorist groups by the United Nations; the profile of the victim, who is frequently an actual or perceived member of a persecuted political, ethnic or religious minority, or targeted on the basis of actual or perceived sexual orientation or gender identity; a climate of impunity, which is generally associated with State collapse, cross-border consequences, such as displacement or trafficking, and/or violations of the provisions of a ceasefire agreement.” (United Nations, 2021, p. 4).
Although the breadth of this definition is difficult to operationalize for many forms of scholarly work, it will be adopted in this thesis due to the fact that this analysis concerns the discourses that are used by the UN itself. As such, its own definition will be used.
Gendered lens
Over the past three decades, feminist scholars have been working to understand, categorize, and draw attention to sexual violence against women and girls in armed conflict. In fact, the field of feminist scholarship was the first to draw attention to CRSV by proposing gender analysis as a central component to its understanding (Du Toit & le Roux, 2021, p. 117). Eventually, this evolved into a vast framework of opposing and supporting theories that seek to explain its occurrence and work to prevent it. Early work in this area was mainly focused on the power-
political nature and function of CRSV, and emphasized the distribution of power between men and women. In this understanding, CRSV is viewed a phenomenon that aimed to assert masculine dominance over the victim (Du Toit & le Roux, 2021, pp. 117-118). Eventually, research veered out into positivist approaches which interpreted CRSV as an exceptional occurrence with no real connection to social relations and hierarchies. This frame is dominant within policy debates, and attributes CRSV to the presence of certain factors such as weak community ties, or the absence of other factors such as criminal accountability. However, feminist critiques state that this leads to a simplistic and superficial understanding of CRSV and the assumption that it can be combated relatively easily through the right policy tools (Du Toit
& le Roux, 2021, p. 118).
As for the study of conflict related sexual violence against men, the available literature is less extensive. According to scholar Sara Meger (2015) we can use the same frameworks that have been constructed around female victims of CRSV for their male counterparts. She argues that the individual and social consequences of sexual violence are the result of the meaning that it is given by the perpetrator, through social constructions of masculinity. This meaning is the same for male victims, and sexual violence is still used by the perpetrator to feminise the victim and assert superior masculine power over them (Meger, 2015, pp. 146-147). As such, she argues that it is possible to at least partially align their experiences and therefore build on existing feminist theories in order to understand CRSV aimed at men.
According to the majority of scholars, policymakers and contemporary media, forms of sexual violence such as rape are used as a weapon of war (Kirby, 2013, p.798). For example, the UN Security Council described sexual violence as a “tactic of war to humiliate, dominate, instill fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group” which had reached “appalling levels of brutality” (United Nations, 2008). This is an instrumental way of analysing sexual violence within the global security agenda that uses means-ends reasoning in order to explain its occurrence according to Kirby (Kirby, 2013, p.
807). However, authors Kolmasova & Krulisova (2019) argue that sexual violence as a conflict related phenomenon cannot be fully understood through realist perspectives. Moreover, the rape-as-a-weapon narrative possesses several shortcomings and may in fact more so damage those that it seeks to protect rather than aid them. Kolmasova & Krulisova criticize that in many academic as well as popular discourses, the mere possession of the male sexual organ classifies them as a potential rapist. They describe a distinction in narratives between on the one hand peace-time rape which is defined as sexual in nature, and on the other hand war-time rape which has become an asexual weapon which is used strategically by a homogeneous male group in
order to inflict both physical and psychological trauma on the (presumably predominantly female) target group (Kolmasova & Krulisova, 2019, pp. 135-136). Nevertheless, this narrative has received a lot of criticism, especially from within the feminist academic debate. This perspective argues that the subject includes fluidic gender roles, social norms and cultural variables, which are constructivist rather than essentialist in nature. As such, the tradition of critical feminist international relations theory is suited to look for additional explanations. It is argued that although the current presence of sexual violence on the global security agenda is undoubtedly a positive thing, the way that the rape-as-a-weapon narrative is constructed and acted upon is troubling. Within their respective context, (local) men as a collective category are often portrayed as bestial backwards uncivilized patriarchal ‘collectivity’, rather than individual rapists. This collective blame is criticized as essentialist and deterministic, and sometimes used to legitimize military interventions within the Responsibility to Protect framework (Kolmasova
& Krulisova 2019, pp. 136-137).
Scholar Paul Kirby (2013) provides a comprehensive outline of alternative explanations of war-time sexual violence that are generally agreed upon within the feminist academic field.
Firstly, he describes how feminist scholarship was the first discipline to draw connections between sexual violence and wartime, as opposed to the historical conception of sexual violence as private and domestic (Kirby, 2013, p. 799). As such, the concept of sexual violence has become politicized within the feminist field. This has resulted in several sub-theories on how conflict related sexual violence should be viewed, mostly dependent on who is to be conceptualized as ‘victim’ (Skjelsbaek, 2001, as cited in Kirby, 2013, p. 800).
The first of these theories that Kirby outlines is essentialist in nature, and views sexual violence as a militarized expression of masculinity, and claims that as a result all women are victims. The second theory is that of structuralism, which argues that only some women are victims of sexual violence through a more practical group-based perspective. The final theory is social constructivist, which sees both men and women as potential victims and works through flexible conceptions of feminine and masculine which may be applied to both based on context and other situational differences (Kirby, 2013, p. 800). The first and the latter of these theories represent opposite ends of the debate on the concept of ‘victimization’, and are relevant for this thesis due to its occupation with male victims of sexual violence. This research will depart from a social constructivist standpoint, assuming that both men and women can be victimized by sexual violence, while analysing the discourses that go along with it. Additionally, employing a feminist lens when discussing conflict related sexual violence calls for a specific way of approaching social occurrences that highlights its political nature. It emphasizes the importance
of recognizing it as a political issue, the gendered components to rape in different contexts, the discourses constructed around sexual violence in the media, and the necessity of collaboration in order to combat the problem (Kirby, 2013, p. 803).
Methodology
In order to answer the research question, a twofold analysis will be conducted. The first part of this analysis will look at general UN resolutions that discuss (conflict related) sexual violence, the Rome Statute of the International Criminal Court (1998) and corresponding Elements of Crimes, as well as official reports of the UN, all of which will be outlined in this section.
As for the UN resolutions, these will include Resolution 1325 (2000), 1820 (2008), 1888 (2009), 1960 (2010), 2106 (2013), 2242 (2015), 2331 (2016) and 2467 (2019). These resolutions are aimed at the combating and prevention of (conflict related) sexual violence, and featured in the digital library of the Office of the Special Representative of the Secretary- General on Sexual Violence in Conflict as relevant resolutions (United Nations Security Council Resolutions, 2019).
With regards to the inclusion of the Rome Statute of the ICC, this decision was made on the grounds that the treaty was negotiated within and adopted by the UN as the result of a long process of consideration of the question of international criminal law within the UN (United Nations, 2022b). Moreover, in article 2 of the Rome Statute it is embedded that “the Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.” This was later formulated within the Relationship Agreement between the United Nations and the International Criminal Court (2004), where it is reaffirmed that the UN and the ICC share an intricate relationship of mutual cooperation and assistance. To this end, in article 3 it is stated that they shall “cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute”. Nevertheless, the ICC was created as an independent judicial body distinct from the UN, and therefore it will be treated like such within this thesis. The Rome Statute outlines “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity […] when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” as a crime against humanity. These clauses are further explained and defined within the corresponding ‘Elements of Crimes’ by the ICC, and these articles will be included for the sake of this analysis.
As for the sources that are specific to the case of Libya, reports and documents of the UN that aim to document conflict related sexual violence in Libya will be analysed. Pursuant to paragraph 15 of Security Council resolution 1820 (2009) in which it was requested that the
Secretary-General submit a report “on the implementation of this resolution in the context of situations which are on the agenda of the Council”, as well as similar requests in following resolutions, the UN has provided yearly reports on conflict related sexual violence around the world. This has resulted in a total of 14 reports so far, of which three will be analysed within this thesis. This will include the reports covering the periods of December 2010 to November 2011 (published in 2012) – because this is the first report that specifically covers conflict related sexual violence in Libya; January to December 2019 (published in 2020); and the most recent report covering January to December of 2021 (published in 2022).
Two additional UN reports that are analysed were produced by the United Nations Support Mission in Libya (UNSMIL). Although these do not cover the topic of conflict related sexual violence exclusively, these were selected due to the fact that they provide a much more in depth description of sexual violence in situations where men are especially vulnerable; in detention- and IDP-camps (Russell, 2007, p. 22). These reports are “Detained and Dehumanized” – Report on Human Rights Abuses against Migrants in Libya (2016) and Abuse Behind Bars: Arbitrary and Unlawful Detention in Libya (2018). This results in a total of five UN reports on conflict related sexual violence in Libya, giving an overview of the last 10 years of available documentation on conflict related sexual violence in Libya. These sources will be covered chronologically within the analysis.
The selection of these sources or the ‘sampling’ was done purposively. That is to say, that the sampling decisions were made to obtain the most informative and appropriate sample rather than a probability sample in which each source would have an equal chance of selection (Drisko & Maschi, 2015, pp. 38-39). For example, while selecting the annual UN Reports on sexual violence, the amount of material that would be suitable for analysis was considered while also making sure that the analysis would not leave big gaps chronologically unaccounted for.
This resulted in having to exclude the years from 2012 to 2015 due to the fact that these annual reports didn’t include much data on sexual violence in Libya, while the years 2016 and 2018 were already covered by the reports of UNSMIL. As such, the choice for the annual report covering the period of January to December 2019 was made.
Content analysis
Firstly, these sources will be analysed using the method of basic content analysis. Content analysis is described as “a research technique for making replicable and valid inferences from texts (or other meaningful matter) to the contexts of their use” (Krippendorff, 2013, as cited in Drisko & Maschi, 2015, p. 2). This entails that it is used descriptively to document what is
present or absent in specific texts or materials. This method allows researchers to go beyond what is communicated within the manifest content, and may also include inferences based on context clues such as the sender of the message or the recipients in order to produce (generally descriptive) conclusions. This may concern the attitudes, views and interests of certain actors, as derived from a quantitative and/or qualitative analysis. Basic content analysis, as opposed to interpretive or qualitative content analysis, makes use of a more literal approach, and can be used for an objective, systematic and quantitative description of the contents of communication (Drisko & Maschi, 2015, pp. 2-6). Despite its largely quantitative character, it also borrows from qualitative techniques through its practice of coding unstructured data. This includes large bodies of text, such as the resolutions and reports that will be analysed in this thesis. That is not to say that basic content analysis uses what academics call ‘mixed methods’, which is when entire, complete quantitative and qualitative studies are combined within one research project.
Rather, it combines techniques, knowledge and skills from both research traditions. As such it is a hybrid or blended research methodology which uses both qualitative forms of interpretation and quantitative descriptions of produced data (Drisko & Maschi, 2015, p. 15). The basis of the analysis within this thesis will consist of a simple frequency count of mentions of male victims of conflict related sexual violence that does not require extensive interpretive judgements to be made. As such, I will be able to identify and map out the attention and consideration that is given to the topic by the UN in order to be able to infer the position that male victims hold within UN discourses.
For a content analysis to be reliable, it must be systematic, methodologically based, and transparent. As such, a careful overview will be given of the decisions and considerations that went into the analysis of the materials and the simple frequency count. The materials will be coded and mentions of male victims will be noted. Within content analysis, this entails the identification of ‘recording units’ which are specific meaningful passages of text or other materials (Drisko & Maschi, 2015, p. 41). This recording unit will subsequently be assigned a code name, such as ‘gender sensitivity’ or ‘male victim’. This will result in a descriptive overview of the explicit consideration that the UN gives to such issues. This practice of coding material requires some interpretive decisions, and will be generated inductively. This entails that there is no a priori coding list, but codes will be developed through a detailed analysis of the collected data set. As such, before starting with the coding process the materials will be thoroughly analysed in order to predetermine some codes that can be used at the start of the coding process. This resulted in the following list of codes: women; men; male victim; female victim; and gender sensitivity. Once this preliminary set of codes is generated and applied, the
code list will be revised and edited wherever necessary in order to categorize all the recording units that were deemed meaningful or relevant (Drisko & Maschi, 2015, pp. 43-45). This resulted in the further inclusion of the following codes: women and children/girls; boys; male perpetrator; and (gender) equality. These were subsequently used to categorize the frequency with which these topics were discussed in UN documents in order to make inferences about the relative position they hold.
Discourse analysis
The second part of this analysis will be more qualitative in nature, and consists of a discourse analysis. In the most basic terms, discourse analysis involves studying language and its effects, in order to uncover discourses that are present within sources (Johnstone, 2017, p. 16). Whereas basic content analysis allows us to discover to what extent the topic of male victims of conflict related sexual violence is discussed within the UN, a discourse analysis will allow us to analyse how the UN speaks about such issues. It looks into the language that is used in order to elucidate the underlying arguments and ideas that are communicated within the text. As such, it uncovers the different beliefs and frames with which the UN approaches the subject of male victims of CRSV, rather than just the relative importance that it assigns to such topics, inferred through the frequency count included in the content analysis. Moreover, language-as-discourse is described as “both a form of action through which people can change the world and a form of action which is socially and historically situated and in dialectical relationship with other aspects of the social.” (Jørgensen & Phillips, 2002, p. 62). Within the context of this thesis, this entails that the way the UN speaks about certain issues is not only relevant due to the fact that they are able to produce policies that shape the social world around them, it is also a reflection of the contemporary social climate since they are in turn also shaped by the social world around them.
Some basic questions that should be asked in a discourse analysis include “Why is this stretch of discourse the way it is? Why is it no other way? Why these particular words in this particular order?” (Johnstone, 2017, p. 23). To answer these questions, the context of the text needs to be considered. In this case, this concerns whether the relevant passage is taken from a resolution, a policy piece, a fact-finding report, etc. In regards to the coding process of the materials, this starts with the identification of words that are closely tied to the topic of male victims of CRSV. These included: male; man; men; castra*; testic*; penetrat*; anal*; and penis. If these words, or slight variations that still carried the same meaning, are used within the UN documents, they will be highlighted and made notes of. However, it is important to note
that these keyword searches alone cannot be relied on to identify potential data. It is sometimes necessary to also take into account context clues in order to determine whether a certain passage is relevant or not. Additionally, throughout this process, additional recurrent words or phrases that are relevant to the topic of male victims of CRSV may be added to this initial list of coding words that are tracked and made notes of. Subsequently, recurring themes and discourses will be identified through careful analysis and consideration of which words or phrases are often used together in order to construct certain frames.
Analysis
This analysis will first cover each source type respectively through content analysis in order to determine the relative frequency and position that male victims of CRSV hold within these documents, and afterwards some recurring themes will be identified that reflect the underlying beliefs, frames, and consequently discourses that are constructed after a thorough discourse analysis over the entire body of materials.
Rome Statute of the International Criminal Court
Within the Rome Statue of the ICC, there are six separate mentions of matters related to sexual violence. The first is in article 7 related to “crimes against humanity”, which stipulates in paragraph 1(g) that “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity […] when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” are to be considered “crimes against humanity” (p. 3). These crimes are also condemned as “war crimes” in article 8 (2) (b) (xxii) and (e) (vi) (p. 4). Further mentions of sexual violence concern the functions and jurisdictions of supporting actors and organs such as the Registry, the Prosecutor and the Court, and are aimed at the protection and support of victims or witnesses of sexual violence. For example, in article 43 (6) it is stated that the Registrar – who is described as the principal administrative officer of the Court – will function with a Victims and Witnesses Unit, which “shall include staff with expertise in trauma, including trauma related to crimes of sexual violence” (p. 21). However, further clarification of what is to be understood as ‘sexual violence’ is not included within the document of the Rome Statute. Of these crimes, only forced pregnancy is detailed further in article 7 (2) (f), where it is stated that forced pregnancy is to be understood as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law” (p. 4). For the purpose of understanding the other crimes of a sexual nature, the Elements of Crimes document gives further insight into how the Rome Statute regards these crimes.
The relevant elements that were further analysed for this section consist of article 8 (2) (e) (vi)-1 to (vi)-6 of the Elements of Crimes, and include fairly detailed descriptions of what constitutes each crime. For example, in article 7 (1) (g)-1 on the “crime against humanity of rape”, four elements are included: “(1) The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object
or any other part of the body. (2) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. (3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (4) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” (p. 5). Important here, is that a footnote is included on the same page that aims to define the word ‘invaded’, which explains that “the concept of ‘invasion’ is intended to be broad enough to be gender-neutral”. This is testament to the inclusive language that is present throughout this document, as well as in the Rome Statute. This was a historical development, as the word ‘gender’ was introduced for the first time within an international criminal law treaty with the Rome Statute (Oosterveld, 2005a, p. 55). Gender neutral terms such as ‘victim’,
‘person’, ‘sexual organ’ and ‘civilian’ are also consistently used, with the exception of the elements describing forced pregnancy where the word ‘women’ is used. Furthermore, it is notable that the definition of rape that was quoted earlier listed the anal opening, again including the possibility of male victims. As such, the Rome Statute provides a neutral and inclusive arena for the UN to operate from.
Nevertheless, the use of the word ‘gender’ in the Rome Statute is also criticized. This critique is mostly focused on the definition of the word that is included, and relates to the perceived conflation of the terms ‘gender’ and ‘sex’. At the start of the official document, it is formulated that “for the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above” (p. 4). Author Hilary Charlesworth argues that this definition does not do justice to the socially constructed reality of the concept, and instead frames gender as a biological issue (1999, p. 394). Furthermore, she points towards the flexible notions of masculinity and femininity in conflict related contexts, making the adoption of a more constructive understanding of gender within the international law framework desirable (Charlesworth, 1999, pp. 393-394). Author Valerie Oosterveld further argues that although a biological foundation to international law is useful if not necessary, biological determinism should not be considered the starting point (2005a, p. 72). However, she also points out how this definition is unlikely to affect the ICC’s work, as the Rome Statute is the only document in which the concept of sex is not considered in the context of a wider gender definition (Oosterveld, 2005a, p. 74).
